Patent Failure: Is the Book On or Off-Track? Part 2
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Litigators Corner:
Patent Failure: Is the Book On or Off-Track? Part 2

By Joseph N. Hosteny of Niro, Scavone, Haller & Niro

In Part 1 of this column, I wrote about how James Bessen and Michael Meurer asserted, in their recently published book, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk, that treating patents as “property” damages our patent system. I pointed out that, while I agreed with them that patents are unique – and unlike other forms of property – I felt that several of their “solutions” fell short. I went so far as to assert that some of their “solutions” would only serve to eviscerate patents. For more details, see Part 1 of this column.

The discussion continues here.

In Patent Failure, Bessen and Meurer also suggest that specialized trial courts or judges are part of the solution. To me, that is not consistent with their criticism of the Federal Circuit. District courts handle mass torts, injuries resulting from pharmaceuticals, aviation accidents, and many other complicated cases. Specialized courts wouldn’t be specialized unless the judge on the bench happened to have the expertise related to the technology involved in the lawsuit. There will rarely be such a match. Judges were lawyers before they were judges; both occupations are years removed from active participation in technical research and developments. Specialized judges are not likely to be up to date on technology. Professor David Schwartz (see my Ma...

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